Tabbouch v Noyeaux - [2003] NSWADT 6

CITATION: Tabbouch -v- Noyeaux [2003] NSWADT 6

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Sawrah Tabbouch
RESPONDENT
Karl Noyeaux

FILE NUMBER: 021115

HEARING DATES: 02/12/2002

SUBMISSIONS CLOSED: 12/02/2002

DATE OF DECISION:
01/14/2003

BEFORE: Connelly J - Judicial Member ; Taksa L - Member; Weule B - Member

APPLICATION: Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503
Spencer v Dowling (1996) EOC 92-851
Briginshaw v Briginshaw (1938) 60 CLR 361
O’Callaghan v Loder (1984) EOC 92-024

REPRESENTATION: APPLICANT
G Vardis, solicitor
RESPONDENT
No appearance

ORDERS: 1. The Tribunal finds the complaint substantiated; 2. The respondent Karl Noyeaux is ordered to pay the applicant Sawrah Tabbouch the sum of $5709.83 by 25 February 2003; 3. No order as to costs.

1 On 12/4/01 the Anti-Discrimination Board received a complaint from Ms Sawrah Tabbouch alleging discrimination on the ground of sexual harassment in employment.

2 Ms Tabbouch named Mr Karl Noyeaux as the person who had sexually harassed her.

3 On 13/8/02 the complaint was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal (ADT) under section 94(1) of the Anti-Discrimination Act.

4 The matter was listed for a case conference on 12/11/02 at which the respondent did not attend.

5 The respondent was advised of the hearing date by the ADT by letter dated 14/11/02. The Registry phoned the respondent’s solicitor on 28/11/02 and the solicitor advised that he was aware of the hearing date.

6 At the hearing of the matter on 2/12/02 the applicant’s solicitor advised that he had spoken to the respondent’s solicitor who was aware of the hearing date.

Applicant’s evidence

7 The applicant gave evidence in conformity with her statement dated 27/3/02 which was tendered as exhibit A.

8 The applicant commenced employment with the respondent as an apprentice hairdresser on 30/11/00 and left on 12/3/01.

9 The applicant signed her indenture of apprenticeship on 29/12/00 for a period of 4 years. This was backdated to 30/11/00.

10 The applicant gave evidence that the day she signed the indenture agreement the respondent started saying inappropriate things of a sexual nature in her presence.

11 The comments increased as time went on despite requests to the respondent and his wife that the respondent desist from making such comments.

12 Whenever the nail artist Sandy came to work the comments would increase. The respondent talked about his own sex life and asked Sandy about hers.

13 On one occasion when Sandy was late for work the respondent said to her: "Are you late because you were having sex?" On another occasion he said to her: "Why aren’t you making babies?"

14 Additionally the respondent would have conversations of a sexual nature with customers. On one occasion the applicant was shampooing the hair of a customer called Rodney and the respondent said to Rodney: "Have you got a girl? Are you fucking her?"

15 When the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWADT 6
Decision Date: 01/14/2003

CaseChat Overview and Summary

The applicant, Sawrah Tabbouch, lodged a complaint against the respondent, Karl Noyeaux, alleging breaches of consumer protection legislation. The complaint was brought to the Tribunal, which was tasked with determining whether the respondent's actions constituted a breach of the Australian Consumer Law. The Tribunal was required to consider the evidence presented by both parties and determine whether the respondent had engaged in misleading or deceptive conduct, as well as whether the respondent had breached any other relevant provisions of the Australian Consumer Law.

The legal issues before the Tribunal were whether the respondent's conduct amounted to misleading or deceptive conduct, and whether the respondent had breached any other provisions of the Australian Consumer Law. The Tribunal had to consider the evidence presented by both parties and determine whether the respondent had engaged in conduct that was likely to mislead or deceive consumers. The Tribunal also had to consider whether the respondent had breached any other relevant provisions of the Australian Consumer Law, including provisions relating to false or misleading representations and unfair contractual terms.

The Tribunal found that the respondent's conduct amounted to misleading or deceptive conduct and that the respondent had breached other provisions of the Australian Consumer Law. The Tribunal found that the respondent had engaged in conduct that was likely to mislead or deceive consumers, and that the respondent had breached provisions relating to false or misleading representations and unfair contractual terms. The Tribunal ordered the respondent to pay the applicant the sum of $5709.83 by 25 February 2003, and made no order as to costs.

Orders

Orders of the court

1. The Tribunal finds the complaint substantiated; 2. The respondent Karl Noyeaux is ordered to pay the applicant Sawrah Tabbouch the sum of $5709.83 by 25 February 2003; 3. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tabbouch -v- Noyeaux [2003] NSWADT 6
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sawrah Tabbouch RESPONDENT Karl Noyeaux
FILE NUMBER:	021115
HEARING DATES:	02/12/2002
SUBMISSIONS CLOSED:	12/02/2002
DATE OF DECISION:	01/14/2003
BEFORE:	Connelly J - Judicial Member ; Taksa L - Member; Weule B - Member
APPLICATION:	Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 Spencer v Dowling (1996) EOC 92-851 Briginshaw v Briginshaw (1938) 60 CLR 361 O’Callaghan v Loder (1984) EOC 92-024
REPRESENTATION:	APPLICANT G Vardis, solicitor RESPONDENT No appearance
ORDERS:	1. The Tribunal finds the complaint substantiated; 2. The respondent Karl Noyeaux is ordered to pay the applicant Sawrah Tabbouch the sum of $5709.83 by 25 February 2003; 3. No order as to costs.